CORELLI & BERONI
[2017] FamCA 1045
•15 December 2017
FAMILY COURT OF AUSTRALIA
| CORELLI & BERONI | [2017] FamCA 1045 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Legal professional privilege – Where de facto wife seeks disclosure of de facto husband’s previous solicitor’s file – Whether privilege waived – Whether conduct inconsistent with maintaining confidentiality – Whether there is any forensic unfairness to the other party in claiming privilege – Where conduct found not inconsistent with maintaining confidentiality and no forensic unfairness to the de facto wife in permitting the claim for privilege – Application dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Application for witness to appear at trial by telephone – Where witness’s evidence will be material in the determination of the trial –Where credibility of witness may be in issue at trial – Where it would be unjust for the witness to appear by telephone – Application dismissed. |
| Family Law Rules 2004 r 16.05 |
| Nine films and Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442 DSEHoldings Pty Ltd v Intertan Inc (2003) 127 FCR 499 Abigroup Ltd v Atkins (1997) 42 NSWLR 623 Attorney-General (NT) v Maurice (1986) 161 CLR 475 Apple Inc v Samsung Electronics Co Limited (No 2) [2012] FCA 1358 |
| APPLICANT: | Ms Corelli |
| RESPONDENT: | Mr Beroni |
| FILE NUMBER: | ADC | 1771 | of | 2016 |
| DATE DELIVERED: | 15 December 2017 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns (via video link to Adelaide) |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 23 November 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McGinn |
| SOLICITORS FOR THE APPLICANT: | Angela Ferdinandy Solicitor |
| COUNSEL FOR THE RESPONDENT: | Mr Bullock |
| SOLICITORS FOR THE RESPONDENT: | JKR Lawyers |
Orders
The de facto husband’s Amended Application in a Case filed 7 September 2017 be dismissed.
The de facto wife’s Application in a Case filed 8 September 2017 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Corelli & Beroni has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS VIA VIDEO LINK TO ADELAIDE |
FILE NUMBER: ADC1771/2016
| Ms Corelli |
Applicant
And
| Mr Beroni |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 23 November 2017 I heard argument, and reserved my decision, in relation to two Applications in a Case in these proceedings. The first application sought production of a file retained by former solicitors of Mr Beroni (“the de facto husband”) over which privilege was claimed. That claim of privilege was met with the counter claim that privilege had been waived. The second application sought that a witness proposed to be called by Ms Corelli (“the de facto wife”), namely Mr B, be granted leave to give evidence in the trial of this matter by telephone. That application was opposed on the grounds that he is a significant witness of credit in this matter.
This is my decision in relation to both applications, and the reasons for those decisions.
BACKGROUND FACTS
These proceedings relate to the validity of a Binding Financial Agreement (“BFA”) executed by the de facto wife on 31 March 2011, and by the de facto husband on 7 April 2011. The de facto wife contends that she only executed the BFA as a result of duress, undue influence or unconscionable conduct instigated by the de facto husband. The de facto husband denies any such conduct. By order made 6 October 2017 I directed that the question of the enforceability of the BFA be listed for trial before all other issues in the litigation, to commence before me in Adelaide on 26 February 2018.
THE PRODUCTION APPLICATION
Relevant legal principles
The following principles may be drawn from the authorities dealing with waiver of privilege:
·The onus of establishing waiver is on the party so asserting;[1]
·To establish waiver, there must be conduct by the party entitled to the privilege which is inconsistent with the maintenance of the confidentiality of the communication;[2]
·Whether the waiver should be found to have occurred will be informed partly by the forensic unfairness of allowing a claim to proceed without the disclosure of the otherwise privileged communication;[3]
·Thus, for instance, the partial production of a document for a forensic purpose, which could have the consequence of creating a false representation as to the document, and consequently an injustice, requires the opposite party and the court to be given the opportunity of satisfying themselves that the proffered parts of the document represent the whole of the material relevant to the issue in question.[4]
[1]Nine films and Television Pty Ltd v Ninox Television Ltd (2005) 65 IPR 442 at [21] per Tamberlin J.
[2]DSEHoldings Pty Ltd v Intertan Inc (2003) 127 FCR 499 at [58] per Allsop J (as his Honour then was), Abigroup Ltd v Atkins (1997) 42 NSWLR 623 at 634 per Bainton J.
[3]DSE Holdings Pty Ltd v Intertan Inc (supra) at [58] per Allsop J (as his Honour then was), Attorney-General (NT) v Maurice (1986) 161 CLR 475.
[4]Attorney-General (NT) v Maurice (supra) at 482 per Gibbs CJ, Apple Inc v Samsung Electronics Co Limited (No 2) [2012] FCA 1358 at 84 per Cowdroy J.
The relevant conduct
The de facto husband has provided the de facto wife with disclosure in the form of a list of documents. Privilege was claimed over documents identified as HM12 – HM31. These are all documents contained within the file maintained by the de facto husband’s former solicitors arising from the drafting and execution of the BFA. At the hearing, it was conceded that three documents contained in that list (HM18, part of HM25 and HM31) were in fact not privileged and production of them has been made. Before me, the only basis upon which production continued to be resisted in relation to the balance of the documents was legal professional privilege, and particularly that the documents related to the seeking or obtaining of legal advice or assistance by the de facto husband. The description of the documents is sufficient to establish that they would indeed, subject to waiver, be covered to legal professional privilege, for instance being notes of conferences between the solicitor and the de facto husband, or correspondence to and from that solicitor and the de facto husband.
However the de facto wife contends that by his and his solicitors’ conduct, the de facto husband has waived that privilege. That waiver is said to be found in the following.
(a)A letter of 29 March 2011 from the de facto husband’s former solicitors to the de facto wife’s solicitors, in which there appears:
Our client advises that there is no basis for the spectre of undue influence, in that he has attended at your offices with your client because she does not drive and English is her second language. We have now counselled our client to that effect and he will not be attending your office during your client’s appointments from now on.
(b)The lawyer’s statement in the BFA of Mr C, the specific solicitor with the conduct of the drafting of the BFA for the de facto husband;
(c)The intimation by senior counsel for the de facto husband on 21 February 2017, during a hearing before Berman J, that Mr C was likely to give evidence in the trial of these proceedings, and subsequent correspondence between the respective solicitors confirming the de facto husband’s intention to obtain an affidavit from Mr C and to make him available for cross-examination at trial. Subsequently the de facto husband changed solicitors and those new solicitors indicated that they do not intend to call Mr C.
(d)Parts of the de facto husband’s trial affidavit, particularly paragraphs [89] and [90]. They provide:
89. Shortly after the events referred to in the preceding paragraph, I recall that I was told by my lawyers that when [the de facto wife] was attending at [D Lawyers] in relation to the agreement I could not go inside the building when [the de facto wife] was receiving advice from her lawyer, and that I should not wait in the reception area either.
90. From that point on, I would drive [the de facto wife] to [D Lawyers] so that she could attend her meetings with [Mr E] but I would remain in the car in the car park in front of the building. I would pull into one of the diagonal parks on [F Street] and sit in the car the whole time waiting for [the de facto wife] to come out. I was conscious that both [the de facto wife’s lawyer] and my own lawyers had told me not to go in with [the de facto wife], and I understand that if I did this it might have implications for the validity of the Financial Agreement.
Additionally the de facto wife relies upon paragraph 105.12 of the de facto husband’s trial affidavit in which, in responding to paragraph 234 of the de facto wife’s trial affidavit, the de facto husband said “I never insisted that [the de facto wife] sign the agreement. I was confused that she would tell me that she was happy with the agreement, ask me to arrange a meeting with [Mr E] and then I would receive a letter from my lawyers requesting changes to the agreement.”
At paragraph 27 of the de facto wife’s Outline of Argument, it is said that in these paragraphs the de facto husband “has referred not only to the fact of having received advice but the content of that advice.”
That was expanded upon in paragraphs 51 and 52 of that outline as follows:
51. It is respectfully submitted that where:
51.1 The respondent de facto husband has indicated that he will call his solicitors as a witness and making (sic) available for cross-examination; and
51.2 The de facto husband (sic) solicitor referred in correspondence to having counselled the husband; and
51.3 That comments, letters and the advice from her solicitor have informed the de facto husband’s state of mind or provided motivation for his claimed actions.
That the de facto husband has acted inconsistently with the maintenance of the privilege and it would be “unfair” for the privilege to be maintained and, in that sense, there is waiver of the confidentiality of the communications and associated privilege.
52.The maintenance of the privilege would preclude the de facto wife from access to material which has influenced the state of mind and hence actions. (Footnotes omitted).
Evaluation
The intimation that a party intends to call their solicitor who drafted a BFA, and gave advice in relation to it, cannot possibly comprise a waiver of the privilege of that advice. It is perfectly consistent with an intention to call the witness, but to nonetheless claim privilege in relation to the advice.
To the extent that it was argued that the lawyer’s statement contained in the BFA itself (to the effect that they have explained to the client the legal implications of the BFA, and the effect of it upon the client’s rights, including the advantages and disadvantages of making the agreement, which were all required by statute as at the time of the execution of the BFA), I am not satisfied that such statements are inconsistent with the maintenance of confidentiality of the advice referred to, or even if they are, that there is any forensic unfairness to the other party in allowing litigation in relation to the BFA to proceed without the production of the privileged communications.
As to the letter of 29 March 2011, it does nothing more than record the solicitors’ exhortation of the de facto husband not to attend the de facto wife’s solicitors’ office during her appointments with them. In my view that does not waive privilege in relation to the precise detail of the advice which they gave him, or if I am wrong as to that, then in any event, there is no forensic unfairness to the de facto wife arising from that correspondence, which perhaps ironically, is relied upon by the de facto wife rather than the de facto husband.
Finally as to the passages in the de facto husband’s trial affidavit, his assertion that he was told by his lawyers that he should not go inside the de facto wife’s solicitors’ building when she was receiving advice from her lawyer, or even wait in the reception area, because if he did this it might have implications for the validity of the BFA, whilst perhaps inconsistent with the maintenance of the confidentiality of that communication, effects no forensic unfairness to the wife in permitting the claim to proceed without the disclosure of the documents which record that advice. Even if I am wrong as to that, then to the extent that there has been waiver, it could only be in relation to the specific advice which the solicitors gave the de facto husband in relation to not attending with the de facto wife when she saw her solicitors, and anything else that might be contained in any relevant consultation would be permitted to be redacted.
The Amended Application in a Case filed 7 September 2017 will therefore be dismissed.
SHOULD MR B GIVE EVIDENCE BY TELEPHONE
Relevant legal principles
Rule 16.05 of the Family Law Rules provides parties with an opportunity to seek to have, amongst other things, evidence adduced from a witness by electronic communication. Whilst that rule does not provide any test as to the circumstances in which such electronic communication should be permitted, rule 16.05(3) does provide a useful checklist of the sorts of matters that are likely to weigh upon the exercise of the discretion, including details of the place from which the party proposes to adduce the evidence, the facilities that are available to enable the witness to be seen or heard by the court, the relevance of the proposed evidence to the issues, any means by which documents might be referred to the witness, and the like. Logically however, the overarching test must be whether it is in the interests of justice for the witness to be permitted to give evidence by the proposed means. If the proceedings are child related proceedings, then also relevant will be the various principles enumerated in Division 12A of the Part VII of the Act.
The relevant facts
An affidavit of Mr B was filed on 26 July 2017. He deposes to being a migration agent who was able to converse with the de facto wife in her native language. It appears she first consulted him when she was living in Country G, and prior to coming to Australia. He was involved in organising her travel to Australia, and indeed met her at the airport when she first arrived in Adelaide on 18 November 2009. A couple of weeks after she arrived, he introduced her to the de facto husband. He did so because he was aware that the de facto husband wanted a European woman to carry out his house work. Later, after they had formed a relationship, he had a discussion with the de facto husband about how the de facto wife might be able to stay in Australia. In the course of assisting the parties to achieve that outcome, he had some conversations with the mother, he says always in her native language. Importantly he says “at that time, I observed that she did not understand much English at all.” Also significantly he says:
[The de facto wife] did not, at any time, during either her visa applications, appear to me to be able to read any of the forms and so a formal translation was required to be made by me.
It is not immediately clear where Mr B was living at the time, but it appears likely that it was in Adelaide. Since then he has moved to live in the ACT.
It appears as though he is now suffering from ill health. At paragraph 26 of his affidavit he said:
I am suffering from Meniere’s Disease and have been hospitalised on a number of occasions. My symptoms are vertigo, dizziness and nausea. I currently live in Canberra and am not well enough to attend any court hearing in Adelaide in person.
Since swearing the affidavit, it appears as though a subpoena has been issued to Mr B to compel his attendance at the trial. It may be that he is no longer particularly willing to involve himself in the proceedings, but I do not know.
In the de facto wife’s solicitor’s affidavit filed 8 September 2017, she deposes that “Mr B has informed me that he is unable to be personally present at court in Adelaide to give evidence due to health reasons.” She annexed to that affidavit a medical report dated 9 January 2017 in relation to Mr B. It is from a Dr H, who is said to be an Ear, Nose, Throat and Neck Surgeon, and was sent to Dr J, who I infer to be Mr B’s general medical practitioner. It reads:
Thank you for referring [Mr B] who presented with a history of right sided sudden hearing loss which occurred about 9 months ago. His hearing loss has been associated with tinnitus.
ENT examination showed clear ears with an audiology examination which confirms mild right sided sensorineural hearing loss. He has normal hearing on the left side. I explained to him the need to have a MRI scan to exclude acoustic neuroma. He suffers from claustrophobia and he doesn’t want to proceed with that option. I organised for him a pure tone audiometry and we talked about the management options which includes right sided hearing aid. He is also not interested. He has severe septal deviation with significant hypertrophy of the soft pallet and uvula and he is overweight. He snores loudly and I believe he suffers from obstructive sleep apnoea. I would be grateful if you could organise a sleep study for him. He will be followed up as required.
Unfortunately, nothing in that report speaks to his inability to travel from Canberra to Adelaide. One is therefore left essentially with Mr B’s own assertion as to such an inability, without any medical buttressing of it. Even accepting that he is claustrophobic, and perhaps disinclined to travel by plane, it nonetheless would be perfectly possible for him to use other means of travel between Canberra and Adelaide.
His evidence is plainly material. It seems likely that the de facto wife’s capacity to understand the BFA, which obviously was drafted in English, is likely to loom large. Likewise, the knowledge which the de facto husband had of her alleged inability to read English, or indeed converse in it fluently, is likely to be relevant to the knowledge by the de facto husband of any position of special disadvantage as between he and the de facto wife. Mr B is therefore likely to prove an important, and perhaps critical, witness.
If he were only to give his evidence by telephone, there would be no opportunity for his demeanour to be observed by the court or indeed the counsel involved. It is not impossible that his veracity will be challenged. Likewise it is possible that the accuracy of his recollection will be challenged. Those are all matters in which the court may be assisted by being able to see Mr B during the course of any challenge to his evidence, in order to determine the weight that should be given to it.
There is no explanation as to why Mr B could not give his evidence by video link. That could be arranged by his attendance at court in Canberra, and a video link being struck between Adelaide and Canberra, however that is not the de facto wife’s application.
In my view, it is not in the interests of justice for this witness evidence to be received by telephone.
The de facto wife’s Application in a Case filed 8 September 2017 will therefore be dismissed.
CONCLUSION
For these reasons both of the Applications in a Case will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 15 December 2017.
Associate:
Date: 15 December 2017
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